Bressler Risk Blog

Bill Freivogel is busy, as always:

• In re Northwest Trustee Servs, Inc., No. 86766-7-1 (Wash. App. Div. 1, June 1, 2026).
  • A law firm (“Law Firm A”), unable to pay its debts, was taken over by Receiver. Bank made a malpractice claim against Law Firm A. Law Firm A turned the malpractice claim over to its malpractice insurance company (“InsCo”).
  • InsCo agreed to defend Law Firm A under a reservation of rights. Because of the reservation of rights, Receiver hired two law firms (“Law Firms A & B”), as independent counsel, to defend the malpractice case.
  • The trial court found Law Firms A & B had a conflict, ordered them disqualified from representing Receiver, and denied them fees. The gist of the conflict claim was InsCo’s policy was being depleted by defense costs. In this opinion the appellate court reversed, finding Law Firms A & B had no conflict. Although InsCo’s insurance policy was paying the fees of Law Firms A & B, InsCo was not their client, and their only duties were to Receiver.
• State v. Teschner, 2025 WL 3439816 (N.J. App. Div. Dec. 1, 2025).
  • Prosecutors moved to disqualify one of Defendant’s lawyers (“Lawyer”) because Lawyer had previously, in a different matter, represented a person (“Witness”) who was slated to testify in this case. Witness’s mental condition was an issue in the earlier matter, and Defendant’s lawyers would raise Witness’s mental condition in this case in order to put in doubt Witness’s credibility.
  • The trial court disqualified Lawyer. In this opinion the appellate court affirmed. The court’s analysis was a straightforward discussion of N.J. Rule 1.9. Lawyer would have learned things in the earlier matter about Witness’s mental condition that would not otherwise have been available to Witness’s trial team in this case.
• Whitehead v. Cornerstone RX, LLC, No. 122899 (Okla. App. May 8, 2026).
  • The trial court disqualified the lawyer for defendants (“Lawyer”) and Lawyer’s law firm because Lawyer had previously represented Plaintiff. In this opinion the appellate court affirmed. The facts and the court’s application of Rule 1.9 are routine. What makes the case worth mentioning is its plain road map for analyzing former client conflicts in Oklahoma.
• Win v. Albou, 2026 QCCS 1920 (CanLII) (Super. Ct. Quebec May 8, 2026).
  • (Caution: We are relying upon a Perplexity translation for the following.) This is a suit by former W claiming former H stole her cryptocurrency worth about $1 million. H moved to disqualify the lawyer for W (“Lawyer”) because Lawyer had earlier represented both H and W jointly in their divorce.
  • In this opinion the court granted the motion. In the divorce matter there were extensive exchanges of information about the parties’ assets including discussions of cryptocurrency. In this opinion the court analyzed the ways in which those considerations could disadvantage H in this case.
  • While the court discussed Lawyer’s confidentiality duties, Lawyer’s duty of loyalty to H was the “main basis” for the disqualification. The court said a “secondary ground” for disqualification was the likely need for Lawyer to testify in this case.
• Fabyanske Westra Hart & Thomson PA v. Western Nat’l Mut. Ins. Co., No. A25-1640 (Minn. App. June 1, 2026).
  • Husband was killed and Wife was severely injured when their motorcycle crashed in a construction zone. Wife sued Contractor and Subcontractor (“Sub”) of the construction zone. Sub had a CGL policy with InsCo. Contractor was an additional insured.
  • InsCo issued a reservation of rights to Contractor because Contractor was insured only for vicarious liability, not its own. Then followed a convoluted series of procedures, which we need not detail.
  • Contractor wound up with independent counsel, believing InsCo’s retained counsel would be in a position to handle liability issues causing Contractor to be uninsured. The trial court found InsCo need not compensate Contractor for hiring independent counsel. In this opinion the appellate court reversed, holding retained counsel had a conflict because retained counsel could have positioned Contractor into being uninsured. Thus, InsCo had to pay for independent counsel.

“Judge Who Is Former Public Defender Office Bureau Chief Disqualified From Previously Supervised Cases: Judicial Ethics Opinion 25-189” —

• “Where a judge was formerly a supervisory-level attorney at an institutional defenders office, we have said the judge need not disqualify from all pending matters in which that office appears. Instead, the judge is permanently disqualified, without the possibility of remittal, in cases in which he/she participated as an attorney in any way, either personally or as a supervisor. This includes cases handled by attorneys subject to the judge’s supervision during the judge’s tenure, whether or not the judge recalls any ‘personal’ involvement. The judge is also disqualified, subject to remittal, from presiding in matters involving former clients for a period of two years from the end of the judge’s employment with the office. The judge’s obligation when presiding over other matters involving former colleagues from the institutional defenders office depends upon the nature of their relationship. If the judge maintains a continuing personal relationship with the former colleague, it should be assessed using the categories of Opinion 11-125 as a guide.”
• “Conclusion: A judge who previously served as bureau chief for the county’s public defender need not disqualify in all matters being handled by that office. Instead:
  • (1) The judge is permanently disqualified without the possibility of remittal in all matters in which the judge participated as an attorney in any way, either personally or as a supervisor. As always, this includes cases that were being handled by attorneys under the judge’s chain of command.
  • (2) The judge is disqualified, subject to remittal, from all matters involving former clients for a period of two years from the end of his/her employment with the public defender.
  • (3) The judge’s obligation in other matters involving former colleagues from the public defender’s office depends on the nature of their continuing personal relationship, if any.”

“Lawyers’ Self-Compassion Is Crucial for Firms’ Risk Management” —

• “Self-compassion and freedom from the inner critic aren’t wellness or well-being concepts; for companies, they are risk management tools that can help the bottom line. That distinction matters, and the legal profession hasn’t yet made it.”
• “Rigorously defined, self-compassion is the capacity to acknowledge error honestly without engaging in relentless self-criticism. It’s the cognitive ability to look clearly at a setback or mistake, extract useful takeaways, and return to pursuing one’s goals. The highest form of self-compassion is staying aligned with your values in any situation.”
• “Lawyers who can’t do this make worse decisions, communicate less honestly, and are more likely to engage in the conduct that drives malpractice claims and bar complaints. Lawyers who learn to process failures in a healthy way will be better at their work—and will be able to better help others.”
• “Consider what actually precedes most malpractice claims and bar complaints:”
• “Errors of overconfidence: a lawyer who does not acknowledge what they don’t know.”
• “Concealment of mistakes: a lawyer too ashamed to surface a problem while it is still correctable.”
• “Failure to accept course corrections from clients or colleagues: a lawyer whose self-protective response to criticism shuts down the ability to act on new information.”
• “These are failures of self-regulation under pressure, not failures of competence. It has more to do with the nervous system than intelligence. The research on self-compassion and the inner critic maps directly onto them.”
• “Studies have found that individuals higher in self-compassion are more willing to acknowledge mistakes, more receptive to critical feedback, more likely to take responsibility without defensive collapse, and faster to recover and return to clear functioning. A 2025 study found that people with higher self-compassion made better decisions under high-stakes uncertainty, showing less preoccupation with loss-avoidance and more capacity for sound cost-benefit analysis.”
• “Lawyers who can process failure cleanly aren’t just healthier. They are better lawyers who follow the Model Rules of Professional Conduct with more ease.”
• “A lawyer’s inner critic tells them that punishing themselves for mistakes is what prevents future ones, but the data suggests otherwise. NALP’s 2025 Lawyer Perfectionism and Well-Being Survey found that perfectionism is linked to resistance to feedback, reduced engagement, and diminished longevity in the profession.”
• “Self-compassion breaks that cycle. It allows lawyers to be accountable in ways that are honest, and proportionate, and followed by return to effectiveness rather than extended self-punishment.”
• “Daily compassion meditation is a practical starting point—yes, even for lawyers. Another good test is what researchers call the colleague standard. After a setback, respond to yourself the way you would respond to a capable colleague in the same situation: with the accurate, useful, forward-looking assessment you would give someone you respect.”
• “Most lawyers may find this unfamiliar at first. That gap between how lawyers treat others whom they respect and how they treat themselves is where the risk lives.”
• “The profession doesn’t need lower standards. It needs lawyers who can meet high standards sustainably, surface errors early, accept correction without collapse, and return to full judgment after hard moments. When properly understood, that is what self-compassion produces.”

Dear Ethics Lawyer explores: “Potential Waiver of Multiple Bidder Conflict” —

• “Q. Dear Ethics Lawyer, I am a banking lawyer who frequently handles acquisitions of banks or branches of banks. Recently, a family-owned bank group in our region has quietly let it be known that it would entertain offers to sell. One of our clients, let’s call them Bank A, contacted me a few days ago to assist them in preparing the legal documents for a bid to purchase it involving a combination of cash and stock. Today another prospective client, Bank B, has contacted one of my partners to assist them in preparing a bid.”
• “I seem to recall from one of your prior columns that this could be a conflict. If so, can’t we just get waivers from both bank groups to allow us to use separate teams of lawyers to assist each bid, each walled off from the other? We won’t be advising on the amount of either bid; our role in each will simply be to prepare a legal offering package, and if successful (in which case, we’d only be representing one of them), the acquisition documents.”
• A: Under Rule 1.7(a)(2), a ‘material limitation’ conflict exists when there is a ‘significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client.’ Here, your firm would be assisting two clients in a ‘zero sum’ bidding war, that only of them can win. And even though you indicate that you will not be determining the amount of the bid, you will have knowledge of each bid’s amount and perhaps other terms and conditions that if known by one or the other of your prospective clients could be used to enhance their bid to the detriment of the other. This is a conflict as you suspect.”
• “Your follow-up question about obtaining a waiver to allow two separate walled-off teams of lawyers to independently advise the two clients in making their respective bids presents an interesting scenario, but one that you should approach very carefully, if at all. As with other concurrent conflicts, ‘material limitation’ conflicts are waivable by the affected clients, i.e., the representation can be undertaken, if the four elements set forth in Rule 1.7(b) are met. As applied to this situation, Rule 1.7(b)(2) and (3) are met or do not apply, leaving 1.7(b)(1) and (4) to satisfy. Rule 1.7(b)(1) requires that the lawyers involved reasonably believe that they will be able to provide competent and diligent representation to each affected client. So, for example, you should consider whether each of your teams could be effectively and completely walled off from the other (as to communications, files, documents, etc.) but still have the necessary expertise and strength to meet the competence and diligence standards. This determination carries risk of a losing bidder later claiming that they were not given the same resources or that some ‘leak’ in the ‘wall’ occurred. Equally as important, you also must consider whether the lawyers can truly do their best for each client, given their own and the firm’s respective economic and other interests in maintaining them as clients. This element must be considered carefully and is another source of risk.”
• “Perhaps even more significantly, Rule 1.7(b)(4) requires that each client give informed consent, confirmed in writing. ‘Informed consent’ is defined in Rule 1.0(e) as ‘agreement by a person to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the proposed course of conduct.’ It is difficult to see why either entity would agree for their law firm to advise a competing bidder. In addition, this requirement may well present a catch-22 in the situation you describe. In order to obtain informed consent from each of these clients to the ‘separate team’ representation, you would need to advise each about the existence and identity of the other as a prospective bidder, yet Rule 1.6 prohibits you from revealing information pertaining to the representation of either of them without their consent. Thus, even asking for informed consent would reveal the existence of another bidder in a way that either or both may not wish to have disclosed.”

“With LMEs Primed for Growth, Will Consolidation Among Clients and Firms Come With Risk?” —

• “Liability management has the hallmarks of a sought-after practice. Better still, it’s primed for growth, thanks to a robust demand for debt and interest rates that remain elevated after initial COVID-era increases. ‘At the end of the day, this practice is going to grow. It’s been growing at an exponential rate that is almost hard to describe when you look at it,’ said Sullivan & Cromwell capital solutions practice co-head Ari Blaut. ‘It’s kind of a rocket ship.'”
• “But the contentious nature of some coercive liability management exercises (LMEs) exposes the practice to an industry trend that may require extra care in the future: consolidation.”
• “Although LME work is largely concentrated among a handful of top firms, those firms are among a cohort that is pulling away from the rest of the Am Law 100 in terms of size, profitability and market dominance.”
• “The consolidation trend for firms and clients increases the potential for conflicts of interest as a small cadre of law firms increasingly represents a shrinking number of private capital firms, some of whom may be clients in some matters and counterparties in others.”
• “Liability management isn’t unique in its ability to present such conflicts, which exist in other transactions and litigation as well, and many firms have become adept at managing ethical conflicts through waivers.”
• “But business conflicts could prove trickier with LMEs, especially in coercive transactions where some lenders run the risk of major losses.”
• “‘Whenever you have nonconsensual LME these days you have to think there is a real litigation risk,’ Blaut said. ‘People are going to file it whether or not they necessarily have a leg to stand on. Part of it is nobody wants to be on the losing end of something.'”
• “After such a conflict led Kirkland & Ellis to change course with its LME practice this winter — a move that preceded the departures of LME specialist David Nemecek and six other LME partners to Simpson Thacher & Bartlett — top LME practitioners urged caution in firms’ choice of clients and methods of negotiation.”
• “‘We touch almost all these institutions on the credit side, and we may have relationships with others,’ said Gibson, Dunn & Crutcher global business restructuring chair Scott Greenberg. ‘If it’s a true conflict where we can’t be adverse to a sponsor, we’ll pass on the mandate.'”
  No Windmill Dunks”
• “While leading LME practitioners acknowledged the risk of conflicts, they broadly said such conflicts can be avoided by effectively screening new matters for potential conflicts at the outset.”
• “‘We do bring in conflict counsel on a lot of our LME deals, and we are very careful when we take on these matters in making sure clients know what conflict counsel is there to do, what we can and can’t do from a conflicts perspective, and to make sure we comply with our engagement letters,’ Blaut said. ‘It’s no different from any other transaction.'”
• “Additionally, LME lawyers urged the need to handle contentious deals as respectfully and professionally as possible.”
• “‘There are repeat players in this, and I do think that your reputation is important,’ said Justin Lee, global head of liability management and strategic capital solutions at Weil, Gotshal & Manges. ‘The way you handle yourself, the way you roll out deals, the way you thoughtfully engage with counterparties is always going to be important.'”

“Plaintiffs’ attorney offers to exit loanDepot class action over conflict of interest” —

• “Ari Karen, a partner at Mitchell Sandler PLLC, has submitted a motion to withdraw as counsel for borrowers who filed a class-action lawsuit against loanDepot in July 2025 amid a dispute over conflicts of interest.”
• “loanDepot filed a motion in November 2025 to disqualify Karen and his law firm, citing the ‘presence of significant ethical conflicts’ in a case where the lender faces accusations of steering and violation of the loan officer compensation rule.”
• “The potential conflict stems from Karen’s previous representation of Sean Johnson, a former loanDepot loan officer. Karen defended Johnson in a February 2022 arbitration after the lender accused him of breach of contract and poaching when he left to join Movement Mortgage. Karen also later served as the defense attorney for Movement in a related lawsuit filed by loanDepot in Delaware.”
• “Crucially, Johnson is the loan officer who originated the loans for the four named plaintiffs in the current class action — Nathan Johnson, Rachel DeBaun, Nathan Moor and Shawn Derrick.”
• “U.S. District Court Judge Julie R. Rubin signaled on June 1 that she would disqualify Karen and Mitchell Sandler from the loanDepot class-action case unless they produced valid conflict-of-interest waivers from the former clients.”
• “‘Absent competent waivers, Mr. Karen and his firm are operating under material conflicts of interest in the representation of Plaintiffs and putative class members in this case,’ Rubin wrote in her memorandum opinion.”
• “In a response filed the following day, Karen stated that although he had already obtained waivers from the former clients, he believed the ‘Plaintiffs’ interests are best served by withdrawing from this litigation and allowing the case to proceed with current Co-Counsel Michael Paul Smith and Smith, Gildea & Schmidt, LLC’s representation.'”
• “‘The firm and its ethics expert believe that the facts and law permit the firm’s representation of the Plaintiffs consistent with its ethical obligations and that such a determination could have been reached without further consideration by the court,’ Karen said in a statement given to HousingWire.”
• “‘However, the firm believes that it is in the Plaintiffs’ best interests for it to withdraw from the case to prevent these distractions from undermining the Plaintiffs’ ability to pursue the serious legal claims against loanDepot on behalf of the putative class.'”
• “In a court filing on Wednesday, the company also wrote that ‘Mr. Karen was informed of this serious conflict of interest nine months ago and therefore had ample time to confer with his Former Clients or withdraw; he instead forced loanDepot and this Court to expend significant resources to address this issue, but now asks the Court to wipe the slate clean without reviewing the waivers he supposedly has obtained already.”
• “‘Despite the troubling nature of this engagement, loanDepot will consent to the withdrawal of Mr. Karen and Mitchell Sandler PLLC, provided the Court clarifies in its order that they are barred from any further involvement in this case, which Mr. Karen’s proposed order fails to address,’ the filing added.”
• “Because the plaintiffs are accusing loanDepot of steering violations under the Truth in Lending Act (TILA), the court noted that Karen’s current representation could expose his former clients — including Johnson — to civil and criminal liability using confidential information he gained while representing them.”
• “In her decision, Rubin detailed how the current and prior litigation are substantially related, pointing out the inherent ethical dilemma Karen faces.”
• “‘Plaintiffs do not address the obvious scenario where Mr. Johnson is deposed by Defendant or called as a witness at trial, which would place Mr. Karen in the untenable position of having to examine his Former Client, Mr. Johnson, to establish that he — as Plaintiffs’ loan officer — steered Plaintiffs ‘towards mortgage loans that contained higher rates and less favorable terms,’ as expressly alleged at paragraph 76(b) of the Amended Complaint,’ Rubin wrote.”
• “According to the judge’s memorandum opinion, loanDepot asserted that because Johnson originated the mortgages for all four named plaintiffs, he had access to confidential information concerning the loans — including borrower names, loan numbers and compensation. The lender argued that Karen naturally would have learned this information through his representation of Johnson.”
• “Rubin, however, said in her decision that ‘the court finds that the Johnson Arbitration (and the other arbitration proceedings in which Mr. Karen served as counsel for at least one other former loanDepot loan officer) and the current action are substantially related, and that Mr. Karen had access to, and likely obtained, confidential information through his representations of the Former Clients in the arbitration proceedings, including the Johnson Arbitration, and that such information would advance Plaintiffs’ position here.'”

“Non-Clients Say Katten Attys’ ‘Double-Cross’ Bars Immunity” —

• “Two onetime Katten Muchin Rosenman LLP attorneys accused of violating a joint defense agreement in a federal criminal healthcare fraud investigation should not be able to avail themselves of a Texas attorney immunity doctrine, according to two co-defendants who allege they were offered as ‘sacrificial lambs’ in a ‘double-cross that would make good fiction.'”
• “Plaintiffs John E. Grisham and Rob Wilburn pushed back Friday against a Texas Supreme Court bid from attorneys Barrett Howell and Ryan Meyer to review a lower appellate court opinion that permitted a suit against them to go forward. Howell has since left Katten and is in solo practice, while Meyer is based in Katten’s Dallas office.”
• “Grisham and Wilburn claim they would have never been indicted in the Northern District of Texas if attorneys Howell and Meyer, who represented James Courville, had not breached their agreement to present a united defense. Courville, who acted as a confidential informant, was never charged, and the indictment charging Grisham and Wilburn was ultimately dismissed.”
• “Grisham and Wilburn said in a Friday response that the lawyers engaged in wrongful conduct outside the scope of their representation of Courville and are now attempting ‘to cast themselves as lawyers who zealously represented their client and strategically had their client act as a confidential informant’ while ignoring that they were in a ‘defense agreement for over two years with plaintiffs [and] then lied, cheated, and stole.'”
• “Howell and Meyer were on Katten’s roster when they represented Courville in a 2019 federal criminal investigation involving blood and genetic testing company Trinity Clinical Laboratory, which was partly owned by Courville, Grisham and Wilburn.”
• “Grisham and Wilburn allege the Katten lawyers are liable for fraud and misrepresentation, breach of fiduciary duty, violation of the Deceptive Trade Practices Act, breach of contract, negligence, aiding and abetting, and conspiracy.”
• “In support of their claims of wrongdoing, Grisham and Wilburn pointed to the federal misdemeanor convictions of Howell and former Assistant U.S. Attorney Carlos A. Lopez for destroying evidence in the case. Both Howell and Lopez pled guilty in February to deleting text messages after a federal judge ordered their production in 2023. Grisham and Wilburn had sought the records to prove their joint defense agreement had been violated, court records show.”
• “‘This is not a legal malpractice case, nor is it a case where plaintiffs sue opposing counsel,’ Grisham and Wilburn said. ‘Instead, it is a case seeking to hold [Howell and Meyer] liable for the substantial damage they caused not only by refusing to honor their agreements, but by actively undercutting those agreements and offering the real parties in interest as sacrificial lambs to an overzealous prosecutor.'”
• “Grisham and Wilburn said the relationship between Grisham, Wilburn and Courville was not ‘sufficiently adversarial’ to support attorney immunity given the facts and circumstances.”
• “‘When the attorney immunity doctrine applies, it is because the relationships between the non-client, the client, and the attorney fall into clearly defined sides — the client and the non-client are clearly ‘adversarial’ to one another, and the attorney is clearly facilitating his client’s mission (often to the non-client’s known detriment),’ Grisham and Wilburn said. ‘However, the opposite is true when the attorney and his client lead the non-client to believe that the attorney is looking out not only for his client’s interests but also for the non-client’s (often against a mutual adversary).'”
• “Grisham and Wilburn claim ‘they were taken advantage of by the very attorneys who had represented to them that they were working together to defeat these charges.'”
• “‘Under these facts, the attorney immunity defense is unavailable, the trial court correctly denied the Rule 91a motion, and the Court of Appeals correctly upheld that denial,’ Grisham and Wilburn said. ‘This court must follow suit to protect both the legal profession and the citizens who rely on it.'”

David Kluft asks: “If all the local lawyers were conflicted, can I base my fee request on national rates?” —

• “A MT contractor was part of a big dispute with Exxon over the construction of an oil refinery in Billings. The contractor tried to hire MT counsel capable of handling a complex construction dispute, but all the firms big enough to do the job were conflicted because they already represented Exxon itself or the other subcontractors that were party to the dispute.”
• “Instead, the contractor hired some big firm lawyers from DC, NYC and Denver. The contractor won the case and asked for attorneys’ fees. Exxon argued that the usual default rule requires the Court to adjust the big firm national rates of the contractor’s lawyers downward to rates of the ‘relevant community,’ i.e., Billings, MT.”
• “The Court disagreed and found that it was appropriate to depart from the usual default rule in this case and regard the ‘relevant community’ as the ‘national bar’ because of the unavailability of unconflicted MT counsel and because of the specialized construction litigation expertise of the lawyers who were retained.”
• Decision: here.

“Clark Hill Exits NJ Health Noncompete Dispute After DQ Bid” —

• “A New Jersey federal judge has signed off on a request from Clark Hill PLC to withdraw as counsel for a nursing home operator amid an adversary’s disqualification motion in a noncompete dispute with a medical consulting company.”
• “The ruling concluded a dispute over whether Clark Hill faced a conflict of interest because of its past representation of Atlas co-defendant Christopher Savino, a former Marquis Health Consulting Services LLC employee accused of violating a noncompete agreement after leaving the company to work for Atlas.”
• “Clark Hill rejected Marquis Health’s conflict allegations in a March filing, arguing there was no violation of New Jersey’s Rules of Professional Conduct because Savino and Atlas remained aligned on the core claims in Marquis’ first amended complaint.”
• “The firm argued that there was no conflict because it did not have confidential information from Savino. But after appearing before Judge Day on May 12 for argument on Marquis’ disqualification motion, Clark Hill moved the next day to withdraw from representing Atlas entirely.”
• “In the May 13 filing, Clark Hill attorney Vanessa M. Kelly told the court that Atlas had consented to the substitution and had retained Fox Rothschild to take over the matter. Kelly further told the court that Fox Rothschild already had entered a partial appearance in the litigation concerning Savino’s crossclaims and would now ‘be taking over the entirety of this case.'”

“Connecticut’s biggest law firm defuses ethics dispute involving former chief justice” —

• “The state’s biggest law firm has avoided an embarrassing legal fight over whether it broke a fundamental ethics rule by asking former Chief Justice Richard Robinson, then a recently hired partner, to work on an appeal in a case that had been argued before him previously when he led the Supreme Court.”
• “Day Pitney filed papers in Superior Court in Hartford Wednesday withdrawing as plaintiff’s counsel in a hard-fought, 13-year old contract dispute between partners breaking up their private equity firm. The motion to withdraw was filed after the judge presiding over the suit scheduled a mid-June hearing on a demand by opposing counsel to have Day Pitney disqualified for an ethics violation involving Robinson.”
• “‘In light of Day Pitney’s withdrawal of its appearance, the Court should cancel the evidentiary hearing scheduled for June 16 and 17, 2026 on the Defendants’ motion to disqualify Day Pitney,’ the motion to withdraw said. ‘The withdrawal renders the Defendants’ motion to disqualify moot.'”
  “In the suit underlying the disqualification fight, CCP Equity Partners founder and Day Pitney client John Clinton sued three other partners, who are represented by West Hartford attorney Garrett Flynn, along with Barbara Schellenberg and David Sabel of New Haven.”
• “The suit has reached the state Supreme Court twice. On the first occasion, in 2022, Robinson was chief justice and led the panel that heard arguments. The court did not issue a decision that time. After conferring, Robinson and the other justices returned the case to the lower court for further proceedings.”
• “Robinson joined Day Pitney after retiring from the Supreme Court in 2024. Billing records show he was involved with the case soon after, as the firm prepared to bring it to the Supreme Court a second time. That time the justices – three of whom sat with Robinson during the earlier appeal – ruled on the merits of the case. They returned it to Superior Court again for a new trial, which is now scheduled for November.”
• “The partners represented by Flynn moved in late February to have Robinson and Day Pitney disqualified for violating a rule of conduct that bars judges from involvement in cases over which they formerly presided.”
• “The Connecticut Rules of Professional Conduct for lawyers say ‘a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge . . . unless all parties to the proceeding give informed consent, confirmed in writing.'”
  “The partners claim in a court filing that Robinson gave Day Pitney an unfair advantage because he could provide insight into how the other justices viewed contract law as applied to a case being prepared for the Supreme Court a second time.”
• “Day Pitney opposed disqualification. It acknowledged a violation of the rules of conduct, but claimed that Robinson’s contribution to the appeal was so inconsequential that a legal sanction punishing anyone for an ethics violation would not be justified.”
• “Records filed with the court show Robison billed 15.7 hours to the case at $1,110 an hour.”
• “‘Contrary to the Defendants’ speculation, Chief Justice Robinson’s contributions to Day Pitney’s representation of Clinton were minimal and immaterial. Therefore, his prior judicial role should not disqualify the entire firm from continuing to represent Clinton,’ Day Pitney told the court”

I just discovered “Dear Ethics Lawyer” from Mark Hinderks at Stinson. Here’s an interesting recent piece on: “Positional Conflicts” —

• “Q: Dear Ethics Lawyer, I am handling a significant case in which I am preparing to argue to a federal district court in our state that a state law cause of action against our client under relatively recent legislation is preempted by federal law. I’ve just learned that one of my partners in the firm is coincidentally preparing to argue in state court on behalf of a different client that preemption does not apply.”
• “I discovered this by accident, given that our firm (similar to other firms) does not track the specific legal arguments being made over time in individual cases as part of its conflict-checking system. Now that I know about it, what do I do? Is this an actual conflict, or something that will just be difficult to explain to the clients if they find out we are arguing both sides of the same argument at the same time?”
• “A: Positional or issue conflicts occur when a lawyer (or firm) is advocating a substantive position in one matter that could be detrimental to the interests of another client in a different matter. This situation raises questions such as whether the first decision rendered will be persuasive or even binding precedent affecting the other case; whether the judge(s) will discount the lawyers’ advocacy knowing the firm is on both sides of the issue; and whether the clients will be concerned by, or even subject to divided loyalties of the lawyers involved?”
• “The issue is dealt with to a certain extent in Model Rule 1.7, Comment 24, which states that ordinarily ‘a lawyer may take inconsistent legal positions in different tribunals at different times on behalf of different clients,’ and that the ‘mere fact’ that precedent might be created adverse to the interest of a client in an unrelated matter does not create a conflict of interest. If, however, there is a significant risk that the advocacy for one client will materially limit the lawyer’s effectiveness for another client in a different case, then a conflict will exist.”
• “Formal Ethics Op. 93-377 (1993) also looks at the issue primarily in the framework of a material limitation conflict under Rule 1.7(a)(2). Is the importance of the issue likely to affect the ultimate outcomes? Is the determination in one case likely to have a significant impact on the determination in the other? Will there be any ‘inclination by the lawyer, or her firm, to ‘soft pedal,’ de-emphasize or alter certain arguments to avoid impacting the other case?’ It concludes on the one hand that a conflict does exist when a lawyer or firm argues opposing substantive positions in the same jurisdiction at the same time; and on the other hand that no conflict exists when the matters are not litigated in the same jurisdiction and there is no substantial risk that either representation will be adversely affected by the other. Of course, there is a huge gray area between these two outcomes, in which the lawyer(s)/firm involved must examine the factors referenced above as to whether a material limitation conflict exists.”
• “There is also the matter of whether the matter should be disclosed to affected clients, especially if the decision is to proceed with both representations. As a practical matter, disclosure and consent (where disclosure may be made, and consent obtained under Rule 1.7(b)) may cure both any actual conflict of interest and inoculate the firm against client surprise and disappointment upon learning its lawyer or firm is arguing a position adverse to its interest.”
• “In the situation you describe above, the two matters are not in the same jurisdiction (one is in state court, the other federal), but are in the same state, where decisions of state and federal courts on a legal issue are likely to have significant influence, one upon the other. You should consider whether either representation is likely to adversely affect the other given the importance of the issue involved, and whether there is any other material limitation on the ability of you and your partner to vigorously present your arguments in the interests of your respective clients, and to have them fairly received by the courts involved. The safe route is either not to knowingly proceed with both matters, or to obtain informed consent if possible from the affected clients.”

“Nelson Mullins Faces $2B Suits Over Alleged Conflicts” —

• “The former wives of two insurance mogul brothers have sued Nelson Mullins Riley & Scarborough LLP for $2 billion, claiming a partner there set up the couples’ estates while quietly conspiring with the brothers to shield marital assets from the wives in the event of divorce.”
• “In two nearly identical suits filed Wednesday in West Palm Beach, Florida, Michelle Waite and Sandra Cohen, who were married to Seth and Brad Cohen, respectively, said Nelson Mullins partner Jonathan Gopman jointly represented them with their husbands when he helped do their estate planning.”
• “But he then worked against the wives’ interests by taking steps with the Cohen brothers, who founded Insurance Care Direct, to cut the wives out of their shares of the marital assets without communicating with the women.”
• “Waite and Sandra Cohen estimate they were denied between $500 million and $1 billion each in what should have been their fair share of the marital assets in their divorces.”
• “Gopman placed marital assets outside the women’s reach, including through complex and unnecessary corporate restructurings and the establishment of foreign trusts, according to the suit. He also helped the brothers secret away marital assets over the course of several years, according to the suit.”
• “Gopman was at Akerman LLP in 2015 when he helped the couples set up their estates, according to the suit. He joined Nelson Mullins in July 2021.”
• “The ex-wives allege that the law firm knew Gopman had previously represented each couple jointly, but agreed to represent the brothers in their respective divorces despite the conflicts of interest.”
• “‘Because Nelson Mullins was involved as counsel in the divorce proceedings, as well as having its own counsel to defend Gopman and its interests in those same proceedings, Nelson Mullins was fully aware of the conflict of interests involved,’ the ex-wives said.”
• “Nelson Mullins also helped the brothers set up a new entity, Entratus LLC, which claimed ownership of the proprietary intellectual property developed over several years at ICD entities, according to the suit.”

David Kluft asks: “Can I wait until the Court finds a conflict before I start screening the new lawyer?” —

• “A CA lawyer represented Home Depot in a few slip and fall personal injury cases, including some involving traumatic brain injury claims. The representation concluded in 2014, she joined a new firm, and in 2025 the new firm (including this lawyer specifically) appeared in a personal injury lawsuit by a man claiming he rented equipment from Home Depot that malfunctioned, causing a traumatic brain injury.”
• “The firm didn’t seek a conflict waiver and didn’t seem to consider it a conflict at all. This confidence may have been based on the passage of time, or the fact that this was a completely different case, or that it was a different type of case (slip and fall vs. equipment malfunction).”
• “Home Depot moved to disqualify both the lawyer and the whole firm. The Court allowed the motion, apparently impressed with the argument that the matters were ‘substantially related’ because the same type of injury was alleged, and therefore the lawyer’s knowledge of Home Depot’s litigation strategies from a decade ago would give her an unfair advantage.”
• “Because the new firm hadn’t bothered to screen anyone from the lawyer’s knowledge, the whole firm was disqualified. The Court stated: ‘[S]creening should be implemented before undertaking the challenged representation or hiring the tainted individual.'”
• “[Ed [Kluft]. Note: Even assuming the judge was correct on the merits, he did a terrible job explaining why this case was distinguishable from other ‘playbook’ cases in which lawyers were not precluded from litigating against former clients, he failed to address the very large passage of time, and his reasoning taken literally would forever ban any lawyer from being adverse to any former client on certain types of cases, which is not what the conflict laws are trying to achieve. Sloppy opinion. Still, the firm should have seen this coming and implemented screening instead of assuming they would win the motion.]”
• “Decision: here.

“FBI warns of in-person data theft attacks from extortion gang” —

• “The FBI warned on Tuesday that the Silent Ransom Group (SRG) extortion gang is now targeting U.S.-based law firms in in-person data theft attacks.”
• “‘As of Spring 2026, SRG actors use a social engineering scheme to pose as an employee from the victim’s IT department. SRG actors either directly call or send phishing emails to urge employees to call the SRG actor posing as IT support,’ the FBI warned in a Tuesday flash alert.”
• “‘While on the phone, the SRG actor directs the employee to grant access to a remote desktop session. If that attempt fails, SRG sends a threat actor to the victim’s location to gain access to insert a storage device into the victim’s computer.'”
• “By going to the victim’s location in person, the malicious actors can steal data by connecting USB drives or external hard drives to the victim’s computer.”
• “‘Through phone calls and phishing emails, SRG actors pose as IT support to establish access to victim computers and exfiltrate data, usually through legitimate remote access tools or by sending an individual in-person to the victim company’s location to gain physical access to computers,’ the FBI added.”
• “SRG uses the stolen data to extort the victims by sending a ransom email that threatens to sell or post it on their leak site, and will also call the victims’ employees or clients to pressure them into beginning ransom negotiations.”
• “This week’s flash alert follows a May 2025 FBI private industry notification warning that the same extortion gang had been targeting U.S. law firms in callback phishing and social engineering attacks for more than two years.”

“Brownstein Hyatt Faces DQ Bid In Sports Betting Biz Fight” —

• “A sports-betting executive suing her former employer for defamation and contract breach is looking to oust the company’s Brownstein Hyatt Farber Schreck LLP attorneys, telling a Nevada federal judge that the firm’s prior work for her creates a conflict.”
• “The legal feud between Australian betting company PlayUp and its former U.S. CEO, Laila Mintas, has plodded along for nearly five years, with each side preparing for trial on Mintas’ claims of defamation, breach of contract and lost wages against the company. But in a Tuesday motion, Mintas’ attorneys claimed that a recently discovered conflict should prohibit the Brownstein Hyatt team from representing PlayUp.”
• “‘Disqualification is warranted because BHFS has an imputed conflict of interest,’ Mintas said. ‘To allow this conflict to remain when there are clear indications that it is being abused would undeniably erode public trust in the profession as a matter of policy.'”
• “At the center of the disqualification request is Brownstein Hyatt’s representation of Mintas while she was still employed at PlayUp, in a case brought by a co-founder of the gambling platform Bet.Works, alleging that Mintas and others conspired to push him out of his company. The matter was eventually settled, but Mintas believes that the dispute offered the Brownstein Hyatt attorneys crucial information.”
• “‘While BHFS characterizes this representation as ‘narrow,’ the scope was not limited to mere procedural filings, and instead offered insight into Dr. Mintas’s professional and personal life that could be — and may well be — weaponized by an adverse party,’ she said.”
• “In an April 27 letter, Brownstein Hyatt attorneys refuted Mintas’ assertions, saying there was ‘no basis — factually or legally — to conclude that a conflict exists,’ stressing that its work was limited only to ‘negotiating and finalizing a settlement.'”
• “The underlying case surrounds Mintas’ time at the company during the collapse of a potential acquisition by the now-defunct cryptocurrency trading platform FTX. PlayUp sued Mintas for tanking the deal, seeking $465 million in damages. Those claims were thrown out last year, but a Nevada federal court allowed Mintas’ counterclaims, including that the company’s leadership defamed her and denied her compensation, to proceed to trial.”
• “According to Mintas, who was born in Germany, Brownstein Hyatt’s prior work on her behalf made the attorneys privy to her immigration status, which she said may be pivotal in PlayUp’s efforts to defeat her case on jurisdictional grounds.”
• “In their letter opposing Mintas’ request for PlayUp’s counsel to exit the case, the Brownstein Hyatt attorneys said that if the company were to make a jurisdictional argument, the facts of her immigration status would have to be disclosed, a passage that set off alarm bells for Mintas.”
• “‘This is an extraordinary admission: BHFS is simultaneously arguing that it possesses no relevant confidential information while telegraphing the use of precisely that information as a basis for a subject matter jurisdiction challenge,’ she told the court.”